ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Court (“ALC”) for a final order and decision following a contested case
hearing pursuant to S.C. Code Ann. 40-58-55(A) (Supp. 2008). Petitioner Shawn
C. Ezell (“Ezell”) challenges the decision of Respondent South Carolina
Department of Consumer Affairs (“Department”) denying his application for a mortgage
loan originator's license pursuant to 40-58-55 (Supp. 2008). The Department denied
Ezell’s application because Ezell’s criminal record shows that within the last
ten years he has been convicted of crimes involving breach of trust, moral
turpitude, or dishonest dealings. After notice to the parties, the court held a
hearing on this matter on November 13, 2008. After carefully weighing all of
the evidence, the court finds that Ezell's application for a mortgage loan
originator's license should be denied.
ISSUE
Does Ezell possess the requisite financial
responsibility, character, and general fitness to command the confidence of the
community and to warrant the belief that his business will be operated
honestly, fairly, and efficiently such that he should be granted a mortgage
originator's license?
FINDINGS OF FACT
Having observed the witnesses
and exhibits presented at the hearing and closely passed upon their
credibility, and taking into consideration the burden of persuasion by the
parties, the court makes the following Findings of Fact by a preponderance of
the evidence.
1. On July 16, 2008, Petitioner Shawn C.
Ezell applied for a Mortgage Originators License in order to work for Gateway
Home Mortgage, LLC in Greer, South Carolina. On his application, Petitioner
marked “NO” to the question of whether or not he had been convicted of a felony
or of an offense involving breach of trust, moral turpitude, or dishonest dealings
within the past ten years.
2. The Department of Consumer Affairs
conducted a South Carolina Law Enforcement Division records check on July 25,
2008.
3. The Department denied his Mortgage
Originators license on August 11, 2008 because Ezell had been convicted of an
offense within the past ten years.
4. On August 21, 2003, a warrant for
fraudulent checks was issued. Ezell was convicted in absentia on two counts of
writing fraudulent checks on September 16, 2003. The arrest warrant remained
outstanding until the checks were paid on August 20, 2008.
5. In June, 2004, Ezell was stopped for
expired tags, and was also operating an uninsured motor vehicle with a
suspended driver’s license.
6. At the hearing, Petitioner argued that
the offenses were minor, and resulted from his difficulty in acclimating to
civilian life after being in the armed forces.
7. Petitioner also submitted evidence of
his exemplary academic records and leadership positions in high school. He
served in leadership positions in Boy Scouts and attained the rank of Eagle
Scout. He served with distinction in the United States Marine Corp.
8. Taking into consideration the
convictions that Petitioner has had in the past ten years and weighing the
evidence presented before me, I find that the Department’s decision to deny the
originator’s license is affirmed.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, the
court concludes the following as a matter of law.
1. Jurisdiction over this case is vested with the
South Carolina Administrative Law Court pursuant to S.C. Code Ann. 37-6-414 (Supp. 2008) and S.C. Code Ann. 40-58-55(A) (Supp. 2005). The
weight and credibility assigned to evidence presented at the hearing of a
matter is within the province of the trier of fact. See S.C.
Cable Television Ass‘n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222,
417 S.E.2d 586, 589 (1992). Furthermore, a trial
judge who observes a witness is in the best position to judge the witness's
demeanor and veracity and to evaluate the credibility of his testimony. See,
e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace
v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App.
1990).
2. In presiding over this contested case, the
court serves as the finder of fact and makes a de novo determination
regarding the licensing matters at issue. Marlboro Park Hosp. v. S.C. Dep't of Health & Envtl. Control, 358 S.C. 573, 577-79, 595
S.E.2d 851, 853-54 (Ct. App. 2004); Brown v. S.C. Dep't of Health &
Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002).
3. To be licensed as a mortgage loan originator,
an applicant must be at least eighteen years of age and must have at least six
months' experience in residential mortgage lending or complete eight hours of
continuing education within ninety days of employment. S.C. Code
Ann. 40-58-50(D)
(Supp. 2008). Further, before issuing a
license to a mortgage loan originator, the Department must find that the
applicant's “financial responsibility, experience, character, and general
fitness... are such as to command the confidence of the community and to
warrant the belief that the business may be operated honestly, fairly, and
efficiently according to the purposes of this chapter....” S.C. Code
Ann. 40-58-60(A) (Supp. 2008). If these
requirements have not been met, the Department is required to refuse the
license. Id (“If the department does not so find, it shall refuse to license the applicant....”) (emphasis added).
4. In determining whether an applicant has the
requisite character and fitness to be licensed as a mortgage loan originator,
the court may consider factors such as whether the applicant has “(1) violated
a provision of this chapter or an order of the department; (2) withheld
material information in connection with an application for a license or its
renewal, or made a material misstatement in connection with the application;
[or (3) been convicted of a felony or of an offense involving breach of trust,
moral turpitude, fraud, or dishonest dealing within the past ten years.” S.C. Code
Ann. 40-58-55(A)
(Supp. 2008). Whether an applicant has demonstrated the requisite
financial responsibility, experience, character, and fitness is within the
discretion of the court. Marlboro Park Hosp., 358 S.C. at
577-79, 595 S.E.2d at 853-54; Brown, 348 S.C. at 512, 560 S.E.2d at 413. See also S.C. Code Ann. 40-58-60(A) (Supp. 2008).
5. After carefully weighing the evidence and
applying the law as discussed above, the court finds that Ezell’s application
for a mortgage originator's license should be denied.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above, the court finds
that the Petitioner's application for a mortgage originator's license should be
denied.
It is therefore ORDERED that the Department shall
deny Petitioner's application for a mortgage loan originator's license in
accordance with 40-58-50 et seq. (Supp. 2008).
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
December 19, 2008
Columbia, South Carolina
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